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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Italy (Environment & consumers) [2007] EUECJ C-304/05 (20 September 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C30405.html Cite as: [2007] EUECJ C-304/5, [2007] EUECJ C-304/05 |
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(Failure of a Member State to fulfil obligations Directive 92/43/EEC Conservation of natural habitats and of wild fauna and flora Directive 79/409/EEC Conservation of wild birds Assessment of the environmental impact of works to modify ski runs)
In Case C-304/05,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 29 July 2005,
Commission of the European Communities, represented by M. van Beek and D. Recchia, acting as Agents, with an address for service in Luxembourg,
applicant,
Italian Republic, represented by I.M. Braguglia and G. Fiengo, acting as Agents, with an address for service in Luxembourg,
defendant,
composed of K. Lenaerts, President of the Chamber, E. Juhász, R. Silva de Lapuerta (Rapporteur), J. Malenovský and T. von Danwitz, Judges,
Advocate General: J. Kokott,
Registrar: R. Grass,
having regard to the written procedure,
after hearing the Opinion of the Advocate General at the sitting on 19 April 2007,
gives the following
authorising measures likely to have a significant impact on that area without making them subject to an appropriate assessment of their implications for the site in the light of the site's conservation objectives and, in any event, without complying with the provisions which allow a project to be carried out in spite of a negative assessment of the implications and in the absence of alternative solutions only for imperative reasons of overriding public interest and only after adopting and communicating to the Commission all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected;
failing to adopt measures to avoid the deterioration of natural habitats and habitats of species and the disturbance of species for which that area was designated;
failing to endow that area with a protective legal status capable of ensuring, in particular, the survival and reproduction of the species of birds mentioned in Annex I to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1), and the breeding, moulting and migration of the regularly-occurring migratory species not covered by Annex I,
the Italian Republic has failed to fulfil its obligations under Articles 6(2) to (4) and 7 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7) and Article 4(1) and (2) of Directive 79/409.
Community legal context
'... an appropriate assessment must be made of any plan or programme likely to have a significant effect on the conservation objectives of a site which has been designated or is designated in future'.
'A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types mentioned in Annex I and habitats of the species mentioned in Annex II, shall enable the natural habitat types and the species' habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.
The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to Directive 79/409/EEC.'
'...
2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.'
'Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of Directive 79/409/EEC in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under Directive 79/409/EEC, where the latter date is later.'
'1. The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.
In this connection, account shall be taken of:
(a) species in danger of extinction;
(b) species vulnerable to specific changes in their habitat;
(c) species considered rare because of small populations or restricted local distribution;
(d) other species requiring particular attention for reasons of the specific nature of their habitat.
Trends and variations in population levels shall be taken into account as a background for evaluations.
Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species, taking into account their protection requirements in the geographical sea and land area where this Directive applies.
2. Member States shall take similar measures for regularly occurring migratory species not mentioned in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.
...
4. In respect of the protection areas referred to in paragraphs 1 and 2 above, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats.'
The park
The status of the park in national law
The status of the park in Community law
Facts
'...
If the works are not carried out, the consequence could be a slow but unavoidable economic decline, not only of the region of Santa Caterina, but of the entire skiing area. Consequently, it is essential to support the carrying out of the proposed development of the lifts and the creation of the new ski runs, with associated facilities, because of the proposal's socio-economic value, particularly from the point of view of tourism.
...
The works proposed may be regarded as respecting the environment on the following conditions:
the entire project to improve the installations and put the new installations and services into operation must be subject to the creation of the car park down the valley from the urban centre of Santa Caterina, as a logical support for the construction of the new installations. Having regard to the type and economic scale of the parking project and given the limits on authorised contributions at Community level, it must be stressed that it is possible that the installations will be financed mainly by the applicants themselves.
...
in order to limit to the maximum extent possible the felling of trees, soil movements and the width of the bridge over the Frodolfo, the linking run, proposed initially to have a minimum width of 40 metres, must be reduced to a width of 20 metres. ...
...
the valley facilities (stands, commentators' and timekeepers' cabins) must be the subject of a specific proposal. ...
the width of the corridor to be deforested for the creation of the lifts must be strictly limited to that required by the safety standards of those installations. ...
the dimensions of the linking run between the existing ski runs and the new arrival/departure station of Plaghera must be altered to reduce soil movements.
...
in order to reduce soil movements and consequent impairment of the sites, neither the linking road between the arrival station and the Valle dell'Alpe refuge nor the depot for the cabins must be built. ...
the proposed new road for traffic to the worksite for the Valle dell'Alpe-Costa Sobretta chairlift must not be built, in light of the excessive impairment of the sites which it would cause. ...
given the great natural quality of the sites (ground cover in the natural meadows, perennial plants, rupestral and moraine plants, typical landscape having the massive vertical lines of rock faces and the broken lines of ridges) and the various risks for the environmental framework which are set out above, the final project ... must comply with all directions in the various domains (flora, fauna, ecosystems, geology, hydrogeology, stability of slopes ...), in order to permit an assessment of the works proposed consistent with high levels of protection for the Alpine nature of the sites.
If the works can be carried out, the final project must also include ... the following:
compensation must be made for the loss of forest resulting from the tree felling by planting twice the number of trees felled. ...
all the [places where] soil [will be moved] must be landscaped and replanted. ...
the service routes (aqueducts, drainage, electricity, artificial snow machines) must be underground. The siting of overhead electricity cables near to lifts must be prohibited.
it is necessary and vital to provide for a morphological and environmental recovery project, dealing definitively with the replanting of the area once the works have been completed. ...
The following conditions must be met before the definitive project is carried out:
with regard to hydrogeology, the problems relating to the consequences of the creation of the ski runs and to the impact of the construction sites on the hydrogeological system at Valle dell'Alpe and on the south slope of Costa Sobretta must be dealt with;
specific studies must be made with regard to the hydrogeological system and geomechanics, with studies of groundwater circulation. ...
an appropriate check of the alterations to the geomorphological state of the outcrop formations on the rock faces affected must be made. ...
With regard to the environmental component of fauna, it is vital again to measure the effect of the works in their global context ...'
'Although the process may be regarded as positive, it does, however, show less positive aspects, since it reflects the necessity for other determinations on certain equally important technical aspects which will probably require technical clarification during the next phases. Clearly, the present study also expresses that limitation and must, consequently, be considered a guidance document for decisions, which highlights risks and provides suggestions in order to resolve problems, rather than a precise measurement of the impact which the works proposed will have on the environment. More exact assessments of that impact ... can be supplied in the future in environmental impact studies which will accompany the development of the current guidelines ...'
'In any event, further design activities must provide for a significant reduction in environmental interference in relation to the initial hypotheses, an aim [for the achievement of which] proposals on the subject contained in the present report can also be used. [That objective must be pursued] with determination as regards the works in Valle dell'Alpe, for which it will be necessary to carry out another specific study of the environmental impact once all the works proposed have been decided.'
establishment of the method of gathering opinions with a view to completing the regional assessment procedures;
adoption of an overall view of the works subject to examination, coordinating so far as possible the procedures in question;
a guarantee that the conditions laid down by the board of the Consorzio would be observed;
confirmation of the siting of the intermediate station at Plaghera and of the refuge at Valle dell'Alpe;
re-examination and adaptation of the projects regarding the works on the Santa Caterina-Plaghera site in accordance with the monitoring requirements laid down by the Consorzio.
Pre-litigation procedure
The action
The first complaint, alleging breach of Article 6(3) of Directive 92/43 in conjunction with Article 7
Arguments of the parties
Findings of the Court
The second complaint, alleging breach of Article 6(4) of Directive 92/43 in conjunction with Article 7
Arguments of the parties
Findings of the Court
The third complaint, alleging breach of Article 6(2) of Directive 92/43 in conjunction with Article 7
Arguments of the parties
Findings of the Court
The fourth complaint, alleging breach of Article 4(1) and (2) of Directive 79/409
Arguments of the parties
Findings of the Court
Costs
On those grounds, the Court (Fourth Chamber) hereby:
1. Declares that:
by authorising measures likely to have a significant impact on Special Protection Area IT 2040044, Parco Nazionale dello Stelvio, without making them subject to an appropriate assessment of their implications in the light of the area's conservation objectives;
by authorising such measures, without complying with the provisions which allow a project to be carried out, in spite of a negative assessment of the implications and in the absence of alternative solutions, only for imperative reasons of overriding public interest and then only after adopting and communicating to the Commission of the European Communities all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected; and
by failing to adopt measures to avoid the deterioration of natural habitats and habitats of species and the disturbance of species for which SPA IT 2040044, Parco Nazionale dello Stelvio, was designated,
the Italian Republic has failed to fulfil its obligations under Article 6(2) to (4) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, in conjunction with Article 7 of that directive, and under Article 4(1) and (2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;
2. Dismisses the remainder of the action;
3. Orders the Italian Republic to pay the costs.
[Signatures]
* Language of the case: Italian.